Wellin v. Wellin et al

Filing 967

ORDER granting(599) Motion for Summary Judgment in case 2:13-cv-01831-DCN; granting(638) Motion for Summary Judgment in case 2:13-cv-03595-DCN; granting(387) Motion for Summary Judgment in case 2:14-cv-04067-DCN Signed by Honorable David C Norton on January 8, 2020.Associated Cases: 2:13-cv-01831-DCN, 2:13-cv-03595-DCN, 2:14-cv-04067-DCN(bgam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
WENDY C.H. WELLIN, as Special
Administrator of the Estate of Keith S. Wellin
and as Trustee of the Keith S. Wellin Florida
Revocable Living Trust u/a/d
December 11, 2001,

)
)
)
)
)
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Plaintiff,
)
)
vs.
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PETER J. WELLIN, CYNTHIA W. PLUM
)
AND MARJORIE W. KING, individually and )
as co-Trustees and beneficiaries of the Wellin )
Family 2009 Irrevocable Trust, u/a/d
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November 2, 2009, and FRIENDSHIP
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MANAGEMENT, LLC,
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Defendants.
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_______________________________________)
LARRY S. MCDEVITT, as Trust Protector
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of the Wellin Family 2009 Irrevocable Trust,
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Plaintiff,
)
)
vs.
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PETER J. WELLIN, CYNTHIA W. PLUM
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AND MARJORIE W. KING, individually and )
as co-Trustees and beneficiaries of the Wellin )
Family 2009 Irrevocable Trust, u/a/d
)
November 2, 2009, FRIENDSHIP
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MANAGEMENT, LLC, and CYNTHIA W.
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PLUM as manager of Friendship Management, )
LLC,
)
)
Defendants.
)
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PETER J. WELLIN, CYNTHIA W. PLUM
)
AND MARJORIE W. KING, individually and )
as co-Trustees and beneficiaries of the Wellin )
Family 2009 Irrevocable Trust
)
)
1

No. 2:13–cv–01831–DCN
ORDER

No. 2:13–cv–03595–DCN

Counterclaim Plaintiffs,

)
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vs.
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LARRY S. MCDEVITT, as Trust Protector
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of the Wellin Family 2009 Irrevocable Trust,
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LESTER SCHWARTZ as Trust Protector
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of the Wellin Family 2009 Irrevocable Trust,
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u/a/d November 2, 2009, and WENDY C.H.
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WELLIN, as Special Administrator of the
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Estate of Keith S. Wellin,
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Counterclaim Defendants.
)
_______________________________________)
PETER J. WELLIN, CYNTHIA W. PLUM
)
AND MARJORIE W. KING, individually and )
as co-Trustees and beneficiaries of the Wellin )
Family 2009 Irrevocable Trust, u/a/d
)
November 2, 2009, FRIENDSHIP
)
MANAGEMENT, LLC,
)
)
Plaintiffs,
)
)
vs.
)
)
WENDY WELLIN, individually and as
)
Trustee of the Keith S. Wellin
)
Florida Revocable Living Trust u/a/d
)
December 11, 2001
)
)
Defendant.
)
_______________________________________)

No. 2:14-cv-4067-DCN

This matter is before the court on Peter J. Wellin, Cynthia Wellin Plum, Marjorie
Wellin King – in their individual capacities, their capacities as co-Trustees and
beneficiaries Wellin Family 2009 Irrevocable Trust (“2009 Irrevocable Trust”), and
Marjorie Wellin King in her role as Manager of Friendship Management, LLC – and
Friendship Management, LLC (collectively, the “Wellin children”) motion for partial
summary judgment based on the statute of limitations for all claims related to the
establishment and the initial transactions involving the 2009 Irrevocable Trust (“2009
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Transaction”) 1. For the reasons outlined below, the court grants the Wellin children’s
motion for partial summary judgment.
I. BACKGROUND
Because the parties are well-acquainted with these cases, the court will dispense
with a recitation of facts and include only a procedural history of the matters at hand.
The instant motion for partial summary judgment involves three cases centered
around a collection of disputes by and among the Wellin children, their stepmother
Wendy C.H. Wellin, in her individual capacity (“Wendy”), and in her official capacity as
trustee of the Keith S. Wellin (“Keith”) Florida Revocable Living Trust u/a/d December
11, 2001 (“trustee Wendy”), on behalf of the Estate of Keith as its duly Appointed
Special Administrator (“Estate”), and Larry S. McDevitt and Lester S Schwartz, each as
Trust Protector of the Wellin Family 2009 Irrevocable Trust (“McDevitt).
Case No. 2:13-cv-1831 is by and between defendants the Wellin children and
plaintiffs trustee Wendy and the Estate (“Wellin I”). Case No. 2:13-cv-3539 is by and
between defendants-counterclaim plaintiffs the Wellin children and plaintiffscounterclaim defendants McDevitt (“McDevitt”). Case No. 2:14-cv-4067 is by and
between plaintiffs the Wellin children and defendants Wendy and trustee Wendy
(“Wellin II”). 2
On June 30, 2017, the Wellin children filed the partial motion for summary
judgment based on the issue of statute of limitations in Wellin I, ECF No. 599, McDevitt,

1

Both parties agree that the scope of this motion is limited to the aspects of the First,
Second, Third, Eighth, Ninth and Tenth causes of action from Wellin I that relate to the
2009 Transaction. ECF No. 599 at 8–9; ECF No. 960 at 3.
2

Unless otherwise specified, all ECF No. citations refer to Wellin I.
3

ECF No. 638, and Wellin II, ECF No. 387. On September 22, 2017, the Estate, on behalf
of the parties adverse to the Wellin children, filed a response in Wellin I, ECF No. 640,
McDevitt, ECF No. 757, and Wellin II, ECF No. 503. On October 13, 2017, the Wellin
Children filed a reply in Wellin I, ECF No. 663, McDevitt, ECF No. 699, and Wellin II,
445. On December 16, 2019, both parties filed supplemental briefings at the court’s
request. ECF No. 960; ECF No. 961. The motion has been fully briefed and is now ripe
for the court’s review.
II. STANDARD
Summary judgment shall be granted “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine dispute as to
any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c). “By its very terms, this standard provides that the mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
“Only disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Id. at 248. “[S]ummary
judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Id. “[A]t the summary judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Id. at 249. The court should view the evidence in the light most
favorable to the non–moving party and draw all inferences in its favor. Id. at 255.

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III. DISCUSSION
A. Statute of Limitations
The Wellin children ask the court to grant a partial summary judgment on the
claims based on the 2009 Transaction on the grounds that the statute of limitations
expired by the time Keith filed his initial complaint against the Wellin children in July
2013. ECF No. 599 at 8. “A federal court sitting in diversity must follow state law in
determining whether an action is commenced for the purposes of applying the statute of
limitations.” Burgess v. Elliott, 2017 WL 1505421, at *3 (D.S.C. Apr. 27, 2017),
aff’d, 696 F. App’x 125 (4th Cir. 2017), cert. dismissed, 202 L.Ed.2d 3, 3 (2018); see
also Thornton v. Cessna Aircraft Co., 886 F.2d 85, 88 (4th Cir. 1989); Alday v. Techphy
Div. Firminy, 10 F. Supp. 2d 562, 563 (D.S.C. June 8, 1998). In a tort claim, a federal
court “considering a diversity action . . . applies . . . the procedural law of the [forum
state].” Burgess v. Elliott, 2017 WL 1505421, at *3 (D.S.C. Apr. 27, 2017), aff’d, 696 F.
App’x 125 (4th Cir. 2017); see also Sokolowski v. Flanzer, 769 F.2d 975, 977 (4th Cir.
1985). Under South Carolina law, “statute of limitations is a procedural device that
operates as a defense to limit the remedy available from an existing cause of action.’” In
re Ashe, 2016 WL 1084282, at *2 (Bankr. D.S.C. Mar. 18, 2016) (quoting Capco of
Summerville, Inc. v. J.H. Gayle Const. Co., 628 S.E.2d 38, 41 (S.C. 2006); see also
Thornton v. Cessna Aircraft Co., 703 F.Supp. 1228, 1230 (D.S.C.1988), aff’d and
remanded, 886 F.2d 85 (4th Cir. 1989) (“A statute of limitations, which requires an action
to be brought within a fixed time following accrual of a cause of action, is generally
procedural because it affects the remedy rather than the right.”). Because the statute of
limitations is procedural under South Carolina law, the court will apply South Carolina

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law 3 in its analysis of the statute of limitations and any equitable tolling or estoppel of the
same.
Under South Carolina law, this action is governed by a three-year statute of
limitation period. S.C. Code § 15-3-530(1) (Supp. 2012) (stating that the statute of
limitations is three years for “an action upon a contract”); S.C. Code § 15-3-530(5)
(stating that the statute of limitations is three years for “any injury to the person or rights
of another, not arising on contract and not enumerated by law”); Graham v. Welch,
Roberts & Amburn, LLP, 743 S.E.2d 860, 862 (S.C. Ct. App. 2013).

3

Both parties agree that South Carolina law governs the issue of the application of
statute of limitations, equitable tolling and equitable estoppel. ECF No. 599 at 14–15;
ECF No. 640 at 27. However, the Estate also makes the argument that Delaware law
governs the substantive law relating to the Eighth, Ninth and Tenth causes of action from
Wellin I based on the governing law provision of the Friendship Partners, L.P. operating
agreement. ECF No. 960 at 23–24. The law is quite clear that a federal court sitting in
diversity will apply the laws of the forum state to address procedural issues, such as the
statute of limitations, regardless of the presence of a choice of law provision. In re Ashe,
2016 WL 1084282 at *2–4 (applying South Carolina law to the statute of limitations
claim even though contract contained a choice of law provision that provided that the
laws of Utah governed its enforceability); see also MedCap Corp. v. Betsy Johnson
Health Care Sys., Inc., 16 F. App’x. 180, 182 (4th Cir. 2001) (applying the statute of
limitations of the forum state, North Carolina, even though the contract included a choice
of law provision providing that the law of Indiana governs its construction); In re
Lewis, 517 B.R. 615, 619 (Bankr. E.D.Va. 2014) (applying Virginia law to procedural
issues despite a choice of law clause in the agreement); Dudek v. Thomas & Thomas
Attorneys & Counselors at Law, LLC, 702 F.Supp.2d 826, 834 (N.D. Ohio 2010)
(“Absent express language in the choice of law provision indicating that the parties
intend another state’s statute of limitations to apply, the procedural law of the forum
governs time restrictions on an action for breach, while the law chosen by the parties
governs the terms of their contract.”); Gas Tech. Inst. v. Rehmat, 524 F.Supp.2d 1058,
1069 (N.D. Ill. 2007) (“Illinois applies forum law to procedural matters, which include
statutes of limitations. This is true even where the litigants are parties to a contract
containing a choice of law provision.”) (internal quotations omitted); Zanfardino v. E–
Sys., Inc., 652 F.Supp. 637, 639 (S.D.N.Y. 1987) (“Under New York law, a choice of law
clause is honored, but operates only to import the substantive law of the selected state.”).
Therefore, even if the Estate were to have made an argument that Delaware law applies to
the statute of limitations, and any equitable tolling or estoppel of the same, such an
argument would fail.
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These statutes of limitations are modified by a doctrine known as the “discovery
rule.” “Under the discovery rule, the limitations period commences when the facts and
circumstances of an injury would put a person of common knowledge and experience on
notice that some claim against another party might exist.” Stokes–Craven, 787 S.E.2d at
489; see S.C. Code Ann. § 15–3–535 (2005) (“[A]ll actions initiated under Section 15–3–
530(5) must be commenced within three years after the person knew or by the exercise of
reasonable diligence should have known that he had a cause of action.”). “This standard
as to when the limitations period begins to run is objective rather than subjective.”
Stokes–Craven, 787 S.E.2d at 489 (quoting Burgess v American Cancer Society, South
Carolina Division, Inc, 386 S.E.2d 798, 800 (S.C. Ct. App. 1989) (emphasis in original)).
“Therefore, the statutory period of limitations begins to run when a person could or
should have known, through the exercise of reasonable diligence, that a cause of action
might exist in his or her favor, rather than when a person obtains actual knowledge of
either the potential claim or of the facts giving rise thereto.” Id. at 490 (emphasis in
original).
The South Carolina Supreme Court has “interpreted the ‘exercise of reasonable
diligence’ to mean that the injured party must act with some promptness where the facts
and circumstances of an injury place a reasonable person of common knowledge and
experience on notice that a claim against another party might exist.” Dean v. Ruscon
Corp., 468 S.E.2d 645, 647 (S.C. 1996). The date on which a plaintiff should have
discovered the cause or causes of action is an objective question. Graham, 743 S.E.2d at
862. In other words, whether the particular plaintiff actually knew he had a claim is not
the test. Rather, courts must decide whether the circumstances of the case would put a

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person of common knowledge and experience on notice that some right has been invaded,
or that some claim against another party might exist. Bayle v. S.C. Dep’t of Transp., 542
S.E.2d 736, 740 (S.C. Ct. App. 2001) (internal citations omitted). “[T]he fact that the
injured party may not comprehend the full extent of the damage is immaterial.” Dorman
v. Campbell, 500 S.E.2d 786, 789 (S.C. Ct. App. 1998) (citing Dean, 468 S.E.2d at 647).
However, “[i]f there is conflicting evidence as to whether a claimant knew or should have
known he or she had a cause of action, the question is one for the jury.” Manios v.
Nelson, Mullins, Riley & Scarborough, LLP, 697 S.E. 2d 644, 654 (S.C. Ct. App. 2010);
see Moriarty v. Garden Sanctuary Church of God, 534 S.E.2d 672, 681 (S.C. 2000)
(“[T]he determination of the date the statute [of limitations] began to run in a particular
case [is a question] of fact for the jury when the parties present conflicting evidence.”);
Maher v. Tietex Corp., 500 S.E.2d 204, 207 (S.C. Ct. App. 1998) (“The jury must resolve
conflicting evidence as to whether a claimant knew or should have known he had a cause
of action.”).
Before beginning an analysis of when the statute of limitations accrued and when
it expired, the court must consider the Estate’s assertion that either equitable estoppel or
equitable tolling prevents the Wellin children from claiming the statute of limitations as a
defense. The Wellin children argue that, based on “the absence of any allegations in the
operative complaint supporting equitable tolling combined with Keith’s deposition
testimony”, the Estate should be precluded from asserting equitable tolling. ECF No. 599
at 9. Under South Carolina law, there is no bright-line standard the Estate must meet to
justify the court’s consideration of equitable tolling. Hooper v. Ebenezer Sr. Services and
Rehabilitation Center, 687 S.E.2d 29, 32 (S.C. 2009) (“The equitable power of a court is

8

not bound by cast-iron rules but exists to do fairness and is flexible and adaptable to
particular exigencies so that relief will be granted when, in view of all the circumstances,
to deny it would permit one party to suffer a gross wrong at the hands of the other. . .
.Equitable tolling may be applied where it is justified under all the circumstances.”
(internal citation omitted)). Since there is no singular determinative disqualifier that
requires the court to decline the application of equitable tolling, the Estate is entitled to
bring an equitable tolling argument. Therefore, the court will evaluate this argument, and
the Estate’s argument for equitable estoppel, as prescribed under South Carolina law.
A. Equitable Estoppel
The Estate argues that equitable estoppel should apply because the Wellin
children’s actions hindered Keith’s ability to discover the existence of claims against the
Wellin children arising from the 2009 Transaction. ECF No. 640 at 32–37. “Under
South Carolina law, a defendant may be estopped from claiming the statute of limitations
as a defense if the delay that otherwise would give operation to the statute had been
induced by the defendant’s conduct.” Kleckley v. Northwestern National Casualty
Company, 526 S.E.2d 218, 220 (S.C. 2000). “The doctrine is, of course, most clearly
applicable where the aggrieved party’s delay in bringing suit was caused by his
opponent’s intentional misrepresentation; but deceit is not an essential element of
estoppel. It is sufficient that the aggrieved party reasonably relied on the words and
conduct of the person to be estopped in allowing the limitations period to expire.”
Magnolia North Property Owners Ass’n v. Heritage Communities, Inc., 725 S.E.2d 112,
125 (S.C. Ct. App. 2012) (emphasis in original). “The essential elements of equitable
estoppel are divided between the estopped party and the party claiming estoppel.”

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Rodarte v. Univ. of S.C., 799 S.E.2d 912, 916 (S.C. 2017); Strickland v. Strickland, 375
76, 84, 650 S.E.2d 465, 470 (S.C. 2007). The essential elements of equitable estoppel
required to toll the running of the statute of limitations are as follows:
The elements of estoppel as to the party estopped are (1) conduct by the
party estopped which amounts to a false representation or concealment of
material facts; (2) the intention that such conduct shall be acted upon by the
other party; and (3) knowledge, actual or constructive, of the true facts. As
to the party claiming estoppel, the elements are (1) lack of knowledge and
of the means of knowledge of the truth as to the facts in question; and (2)
reliance upon the conduct of the party estopped.
Maher v. Tietex Corp., 500 S.E.2d 204, 209 (S.C. Ct. App. 1998); see also Southern Dev.
Land and Golf Co. v. South Carolina Pub. Serv. Auth., 426 S.E.2d 748, 751 (S.C. 1993).
A necessary element of equitable estoppel is the Estate proving it had a “lack of
knowledge and the means of knowledge of the truth as to facts in question.” It cannot.
As the court stated in its January 22, 2014 order “Keith signed the documents on the
advice of his estate attorney, who crafted the . . . 2009 Transaction. South Carolina
courts impute knowledge to a principal when his or her attorney understands the contents
of a document.” 4 ECF No. 91 at 7–8 (citing Dorman v. Campbell, 500 S.E.2d 786, 789;

4

When addressing the issue of imputed knowledge in its January 22, 2014 order, the
court stated, “Keith’s complaint makes no claims against his former estate attorney, and
there appears to be no reason why that attorney’s knowledge of the transaction should not
be imputed.” ECF No. 91 at 8. The court did not intend for this dictum to be perceived
as a prompt for the Estate to file a legal malpractice claim against Keith’s estate attorney,
Tom Farace (“Farace”), and his law firm (together with Farace, “Farace defendants”).
Nevertheless, the Estate did file a legal malpractice claim against the Farace defendants
(“Farace claim”). Wellin v. Farace et. al, No. 2:16-cv-0414, ECF No. 9. Additionally,
the court never indicated that by bringing such a claim, it would necessarily negate
imputation to Keith of Farace’s knowledge of the 2009 Transaction. In its research, the
court found no South Carolina case law indicating that bringing a claim of legal
malpractice against one’s lawyer would negate the imputation of knowledge from that
lawyer to their client. The Estate also provides no such evidence nor made any
arguments to support that bringing a claim of legal malpractice against one’s lawyer
would negate the imputation of knowledge from that lawyer to their client.
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Faulkner v. Millar, 460 S.E. 2d 378, 381 (S.C. 1995); Crystal Ice Co. of Columbia, Inc. v.
First Colonial Corp., 257 S.E.2d 496, 497 (S.C. 1979)). The Estate contends that Keith
“hardly heard” from his estate attorney regarding the 2009 Transaction and that his estate
attorney was permitted to communicate with the Wellin children because Keith “had faith
in them and trusted them.” ECF No. 640 at 5. The Estate also argues that the Wellin
children had more information regarding the 2009 Transaction than Keith as a result of
their communication with his estate attorney and if the Wellin children informed Keith of
the tax liability he could face as a result of the 2009 Transaction, then “he would not have
consented to it.” Id. Even taking these facts as true and in the light most favorable to the
Estate, it does not negate that fact that under South Carolina law, Keith’s estate attorney’s

Even if bringing a legal malpractice claim were to negate the imputation of knowledge,
the court granted summary judgment in favor of Farace defendants. Wellin v. Farace et.
al, No. 2:16-cv-0414, ECF No. 210. Even if the court were not to have granted summary
judgment in favor of Farace defendants and assumed instead that the court found in favor
of the Estate in the Farace claim, the Estate provided no evidence that it would meet the
“adverse interest exception” that is required to relieve Keith from having Farace’s
knowledge imputed to him. See In re Infinity Bus. Group, Inc., 497 B.R. 794, 812
(Bankr. D.S.C. 2013) (predicting that South Carolina Supreme Court would apply a
standard that requires total abandonment of the principal's interest and no benefit to the
principal in order to apply the adverse interest exception (citing Citizens' Bank v.
Heyward, 133 S.E. 709, 713 (S.C. 1925) (extensively examining the law regarding
imputation of an agent's knowledge to a principal, noting that the proper inquiry for
imputation is “whether the act was done in the course of the agency and by virtue of the
authority as agent[, and i]f it was, then the principal is responsible, whether the act was
merely negligent or fraudulent.”))). Even if the court were to assume the Estate proved
that it would meet the “adverse interest exception”, the “sole actor rule” would prevail
and Farace’s knowledge would be still be imputed to Keith. See In re Derivium Capital
LLC, 716 F.3d 355, 368 (4th Cir. 2013) (finding that if an agent is the sole representative
of a principal, then that agent's fraudulent conduct is imputable to the principal regardless
of whether the agent's conduct was adverse to the principal's interests under South
Carolina law).
In short, there is no legal basis for the court to find that Farace’s knowledge of the 2009
Transaction is not imputed to Keith.
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knowledge of the full impact of the 2009 Transaction is imputed to Keith. Because of the
imputation of this knowledge, the Estate cannot prove lack of knowledge of the truth to
the facts in question. 5 Therefore, the court declines to apply equitable estoppel to
suspend or extend the three–year statute of limitations.
B. Equitable Tolling
The Estate also argues that equitable tolling should apply because the Wellin
children’s actions hindered Keith’s ability to discover the existence of claims against the
Wellin children arising from the 2009 Transaction. ECF No. 640 at 32–37. “[I]n order to
serve the ends of justice where technical forfeitures would unjustifiably prevent a trial on
the merits, the doctrine of equitable tolling may be applied to toll the running of the
statute of limitations.” Hooper, 687 S.E.2d 29 at 32 (citing 54 C.J.S. Limitations of
Actions § 115 (2005)). “Where a statute sets a limitation period for action, courts have
invoked the equitable tolling doctrine to suspend or extend the statutory period to ensure
fundamental practicality and fairness.” Id. (citation and internal quotation marks
omitted). In Hooper, the South Carolina Supreme Court noted that equitable tolling
“typically applies in cases where a litigant was prevented from filing suit because of an

5

Although South Carolina law imposes a duty on a person signing a document to
exercise reasonable care to protect himself and learn the contents of a document before
signing it, Regions Bank v. Schmauch, 582 S.E.2d 432, 440 (S.C. Ct. App. 2003), the
Estate also argues that the Wellin children’s failure to describe to Keith the risks and
consequences of the 2009 Transaction entitles the Estate to equitable estoppel under the
doctrine of “estoppel by silence.” ECF No. 640 at 31–32 (citing Provident Life &
Accident Ins. Co. v. Driver, 451 S.E.2d 924, 928 (S.C. Ct. App. 1994). Assuming that
the Estate could prove “estoppel by silence” to meet the essential elements of estoppel as
to the party estopped, it would still fail to prove all essential elements necessary to the
party claiming estoppel because of the imputation of the knowledge of the truth to the
facts in question from Farace to Keith. Because all essential elements need to be proven
for an equitable estoppel defense to prevail, the court need not address this argument.
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extraordinary event beyond his or her control.” Id. Hooper held that, in general,
equitable tolling is appropriate:
(1) where the plaintiff has actively pursued his or her judicial remedies by
filing a timely but defective pleading; (2) where extraordinary
circumstances outside the plaintiff's control make it impossible for the
plaintiff to timely assert his or her claim; or (3) where the plaintiff, by
exercising reasonable diligence, could not have discovered essential
information bearing on his or her claim.
Equitable tolling applies either where the defendant is shown to have
actively misled or prevented the plaintiff in some extraordinary way from
discovering the facts essential to the filing of a timely lawsuit, or where the
plaintiff has timely raised the same claim in the wrong forum.
Id. The Hooper court stated that these circumstances were not an “exclusive list of
circumstances that justify the application of equitable tolling,” but may be applied only
when “in view of all the circumstances, to deny it would permit one party to suffer a
gross wrong at the hands of the other.” Id. at 33. The Hooper court cautioned that
equitable tolling “should be used sparingly and only when the interests of justice compel
its use.” Id. “The party claiming the statute of limitations should be tolled bears the
burden of establishing sufficient facts to justify its use.” Id. at 32.
The Estate relies on four cases to support its argument that the court should apply
equitable tolling in this instance. ECF No. 640 at 29–30. In Magnolia North, the
plaintiff-homeowners’ association sued the defendant-developer for defects in
construction eight months after gaining control of the homeowners’ association from
defendant-developer, but more than three years after the first meeting of the association,
which would be outside the statute of limitations. 725 S.E.2d 112 at 125. The South
Carolina Court of Appeals found the statute of limitations was equitably tolled during the
period of time the defendant-developer controlled the homeowners’ associations because
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“an organization they controlled would [not] have initiated an action against itself during
this period” and that their lack of control prevented the plaintiff-homeowners’ association
from bring suit until after defendant-developer lost control of the homeowners’
association. Id. In Orlando Residence, Ltd. v. Hilton Head Hotel Investors, the court
invoked equitable tolling to pause the statute of limitations for the period the defendant
controlled the confession of judgment that was entered by the plaintiff. 2013 WL
1103027, at *12 (D.S.C. Mar. 15, 2013), aff’d sub nom. Orlando Residence, Ltd. v.
Nelson, 565 F. App’x 212 (4th Cir. 2014). The court found the facts to be similar to
Magnolia North, and that because the defendant’s control of the confession of judgment
prevented the plaintiff from bringing suit, applying equitable tolling was appropriate. Id.
In Hooper, the defendant failed to properly list its register agent for service with
the Secretary of State as required by state law. 687 S.E.2d at 33–34. As a result, plaintiff
“diligently pursued service on what turned out to be a nonexistent agent” but nonetheless
was unable to effect service until one month after the running of the statute of limitations.
Id. at 34. The South Carolina Supreme Court found that the plaintiff was diligent in
pursuing its claim and the running of the statute of limitations was “caused by
[defendant]’s own failure to supply the correct information regarding its agent to the
Secretary of State as required by law,” and justified equitable tolling. Id. In Wright v.
Officer BJ Sawyer & Officer 2 Unknown, the defendant delayed its response to discovery
and the court issued an order allowing the plaintiff to file a Motion to Amend after the
running of the statute of limitation. 2016 WL 3633445, at *6 (D.S.C. June 15, 2016),
report and recommendation adopted sub nom. Wright v. Sawyer, 2016 WL 3615655
(D.S.C. July 6, 2016). The court found that equitable tolling was justified because the

14

delay in filing had been caused by the defendant and the court. Id. A delay in filing the
claim, not discovering the claim, caused by external factors outside the plaintiff’s control
is the dispositive fact in each of these cases. In other words, in South Carolina equitable
tolling is a remedy most often grounded in procedural law, not substantive law.
The Estate makes many arguments about how the Wellin children engaged in
behavior that purported to prevent the Estate from discovering the claims related to the
2009 Transaction. ECF No. 640 at 32–37. However, the Estate makes no arguments that
anyone engaged in behavior that purported to prevent the Estate from filing the claims
related to the 2009 Transaction. As the court explained in detail above, the Estate did
have knowledge of the full impact of the 2009 Transaction based on the imputation of
knowledge to Keith from his estate attorney. Because the Estate had the knowledge
necessary to bring a claim and did not make any arguments trying to prove the Wellin
children, or any other actor, caused the Estate’s failure to bring a claim within the statute
of limitations, the Estate cannot meet the burden of proving equitable tolling should be
applied in this case.
After considering the facts of this case, and mindful of the South Carolina
Supreme Court’s instruction that equitable tolling should only be used “sparingly,” the
court declines to apply equitable tolling to suspend or extend the three–year statute of
limitations.
C. Accrual
The statue of limitations period begins to run when “the facts and circumstances
of an injury would put a person of common knowledge and experience on notice that
some claim against another party might exist.” Stokes–Craven, 787 S.E.2d at 489; see

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S.C. Code Ann. § 15–3–535 (2005) (“[A]ll actions initiated under Section 15–3–
530(5) must be commenced within three years after the person knew or by the exercise of
reasonable diligence should have known that he had a cause of action.”). The parties
disagree regarding when the Estate knew or should have known that a cause of action for
claims arising out of the 2009 Transaction, and therefore, when the statute of limitations
began to run. This case was filed on July 3, 2013. Therefore, to determine if the statute
of limitations has run, there must be objective proof that the Estate knew or should have
known that a cause of action against the Wellin children for failure to disclose the risks
and consequences of the 2009 Transaction existed prior to July 3, 2010.
The Wellin children argue that the Estate’s claims that arise out of the 2009
Transaction began to run when the 2009 Transaction was executed on November 30,
2009. ECF No. 599 at 2. On the other hand, the Estate argues that the statute of
limitations did not begin running until the hiring of new tax and estate counsel in 2013.
ECF No. 640 at 5. No new evidence has been uncovered to change the court’s position
its January 22, 2014 order that the statute of limitations for the Estate’s claims that arise
out of the 2009 Transaction began to run when the 2009 Transaction was executed on
November 30, 2009. ECF No. 91 at 7. Because the court finds that neither equitable
estoppel nor equitable tolling are appropriate in this instance, the Estate brought their
claims that arise out of the 2009 Transaction after the statute of limitations had run.
Therefore, the court grants the defendants’ motion for summary judgment because on all
the claims arising out of the 2009 Transaction brought by the Estate are barred by the
statute of limitations.

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IV. CONCLUSION
For the reasons set forth above, the court GRANTS defendants’ motion for partial
summary judgment.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
January 8, 2020
Charleston, South Carolina

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